Citation Nr: 0822742
Decision Date: 07/07/08 Archive Date: 07/17/08
DOCKET NO. 04-09 640 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUES
1. Entitlement to service connection for right ear hearing
loss.
2. Entitlement to service connection for chronic ear
infections.
3. Entitlement to service connection for pseudofolliculitis
barbae.
4. Entitlement to service connection residuals of a left
second finger fracture.
5. Entitlement to service connection for residuals of a
right third finger injury.
6. Entitlement to service connection for shin splints, left
leg.
7. Entitlement to service connection for shin splints, right
leg.
8. Entitlement to service connection for a left ankle
disability.
9. Entitlement to service connection for tendonitis of the
right ankle.
10. Entitlement to service connection for an eye disability.
11. Entitlement to an initial compensable evaluation for
left ear hearing loss
12. Entitlement to an initial compensable evaluation for
allergic rhinitis.
13. Entitlement to an initial compensable evaluation for
lumbar strain prior to May 19, 2003 and in excess of 10
percent since May 19, 2003.
14. Entitlement to a compensable evaluation based upon
multiple noncompensable service-connected disabilities from
June 9, 2002 to May 18, 2003.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. Henriquez, Counsel
INTRODUCTION
The veteran had active service from June 1992 to June 2002.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Seattle, Washington.
In an October 2007 rating decision, the RO increased the
rating for the veteran's service-connected lumbar spine
disorder to 10 percent, with an effective date of May 19,
2003. Because this increase did not constitute a full grants
of the benefits sought, the increased rating issue remains in
appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993).
The record reflects that the veteran was scheduled for a
Travel Board hearing before a Veterans Law Judge in January
2008, but he cancelled the hearing.
In January 2008, the veteran submitted additional private
medical evidence to the Board with a waiver of initial RO
consideration of the evidence.
The issues of entitlement to service connection for an eye
disability and increased initial ratings for left ear hearing
loss, allergic rhinitis, and lumbar strain are addressed in
the REMAND portion of the decision below and are REMANDED to
the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDINGS OF FACT
1. The veteran's current level of hearing acuity in the
right ear does not constitute a disability for which service
connection can be granted under applicable VA regulations.
2. The veteran does not have chronic ear infections that are
related to active service.
3. The veteran does not have pseudofolliculitis barbae that
is related to active service.
4. The veteran does not have residuals of a left second
finger fracture that are related to active service.
5. The veteran does not have residuals of a right third
finger injury that are related to active service.
6. The veteran does not have shin splints of the left leg
that are related to active service.
7. The veteran does not have shin splints of the right leg
that are related to active service.
8. The veteran does not have a left ankle disability that is
related to active service.
9. Tendonitis of the right ankle was manifested in service
and is attributable to service.
CONCLUSIONS OF LAW
1. Service connection for right ear hearing loss is not
established. 38 U.S.C.A. §§ 1101, 1110, 1112, 5102, 5103,
5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303,
3.307, 3.309 (2007).
2. Service connection for chronic ear infections is not
established. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107
(West 2002 & Supp. 2008); 38 C.F.R. § 3.303 (2007).
3. Service connection for pseudofolliculitis barbae is not
established. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107
(West 2002 & Supp. 2008); 38 C.F.R. § 3.303 (2007).
4. Service connection for residuals of a right third finger
injury is not established. 38 U.S.C.A. §§ 1110, 5102, 5103,
5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. § 3.303
(2007).
5. Service connection for shin splints of the left leg is
not established. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A,
5107 (West 2002 & Supp. 2008); 38 C.F.R. § 3.303 (2007).
6. Service connection for shin splints of the right leg is
not established. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A,
5107 (West 2002 & Supp. 2008); 38 C.F.R. § 3.303 (2007).
7. Service connection for a left ankle disability is not
established. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107
(West 2002 & Supp. 2008); 38 C.F.R. § 3.303 (2007).
8. Service connection for residuals of a left second finger
fracture is not established. 38 U.S.C.A. §§ 1110, 5102,
5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. § 3.303
(2007).
9. Tendonitis of the right ankle was incurred in service.
38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 &
Supp. 2008); 38 C.F.R. § 3.303 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Upon receipt of a complete or substantially complete
application for benefits and prior to an initial unfavorable
decision on a claim by an agency of original jurisdiction,
the Secretary is required to inform the appellant of the
information and evidence not of record that (1) is necessary
to substantiate the claim, (2) the Secretary will seek to
obtain, if any, and (3) the appellant is expected to provide,
if any, and to request that the claimant provide any evidence
in his possession that pertains to the claim. See 38
U.S.C.A. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112
(2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38
C.F.R. § 3.159 (2007); Mayfield v. Nicholson, 444 F.3d 1328
(Fed. Cir. 2006).
In this decision, the Board grants service connection for
tendonitis of the right ankle which represents a complete
grant of the benefit sought on appeal. See Barrera v. Gober,
122 F.3d 1030 (Fed. Cir. 1997); Grantham v. Brown, 114 F.3d
1156 (Fed. Cir. 1997). Thus, no discussion of VA's duties to
notify and assist is required with respect to this issue.
With regard to the other service connection issues on appeal,
complete VCAA-compliant notice was sent in January and March
2006 and the claims were readjudicated in an October 2007
supplemental statement of the case. Mayfield v. Nicholson,
499 F.3d 1317 (Fed. Cir. 2007).
VA has obtained service medical records, assisted the veteran
in obtaining evidence and afforded the veteran physical
examinations. All known and available records relevant to
the issues on appeal have been obtained and associated with
the veteran's claims file; and the veteran has not contended
otherwise.
VA has substantially complied with the notice and assistance
requirements and the veteran is not prejudiced by a decision
on the claims at this time.
Service Connection-General Criteria
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service during peacetime. 38 U.S.C.A. § 1110; 38 C.F.R.
§ 3.303. Service connection may be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Specified diseases listed as chronic in nature may be
presumed to have been incurred in service, if the evidence
shows that such disease became manifest to a degree of 10
percent or more within one year from separation from active
service, even though there is no evidence of such disease
during the period of service. 38 U.S.C.A. §§ 1112, 1137
(West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a) (2007).
Sensorineural hearing loss is included as among the specified
chronic diseases subject to presumptive service connection.
38 C.F.R. § 3.309(a) (2007).
Right Ear Hearing Loss
Service treatment records reveal no complaints of or
treatment for right ear hearing loss.
The veteran underwent a VA (QTC) audiological examination in
March 2002. Audiometric testing revealed pure tone
thresholds at 500, 1000, 2000, 3000, and 4000 Hertz as 10,
10, 0, 0, and 5, in the right ear with speech recognition
scores at 100 percent. Right ear hearing loss was not
diagnosed.
For VA purposes, impaired hearing is deemed to be a
disability when the auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels
or greater; or when the auditory thresholds for at least
three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz
are 26 decibels or greater; or when speech recognition scores
using the Maryland CNC Test are less than 94 percent. See 38
C.F.R. § 3.385 (2007); see also Hensley v. Brown, 5 Vet. App.
155, 159 (1993).
Neither the service treatment records or current VA
examination shows that the veteran has a right ear hearing
loss disability that meets the criteria set forth in
38 C.F.R. § 3.385. Therefore, the veteran's claim for
service-connected disability benefits for right ear hearing
loss cannot be granted.
Chronic Ear Infections
The service treatment records show that in March 1998, the
veteran was diagnosed as having otitis externa and otitis
media.
On VA (QTC) audiological examination in March 2002, the
veteran reported that he had a bout of left otitis externa
which cleared with eardrops. Examination of the eardrums
showed that they were intact and mobile. There was no
evidence of a chronic ear infection.
The veteran's service treatment records document diagnoses of
otitis externa and otitis media on one occasion. The
condition appeared to have resolved with no follow-up
treatment. Apart from the veteran's own reference to
suffering from a bout of otitis externa on current VA
examination, there is no other evidence of current ear
infections.
The Board concludes that service connection for chronic ear
infections is not warranted because there is no evidence of a
current disability. In the absence of proof of a present
disability, there can be no valid claim. See Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992).
Pseudofolliculitis Barbae
Service treatment records show that in January 1993, the
veteran was noted to have shaving irritation.
On VA examination in March 2002, examination of the skin
revealed no lesions, infections or rashes. The examiner
noted a history of pseudofolliculitis barbae. The veteran
was advised not to shave.
Apart from the VA examiner's reference to a history of
pseudofolliculitis barbae, there is no evidence of a current
diagnosis of the disorder. A claim for service connection
for a disability must be accompanied, at a minimum, by
medical evidence that establishes that the claimant currently
has the claimed disability. Absent proof of a present
disability, there can be no valid claim. See Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992).
The veteran's claim of service connection for
pseudofolliculitis barbae has not been substantiated and must
be denied.
Left Second Finger Fracture
The veteran's service treatment records show that in
September 1997, he was treated for a fracture of the index
finger of the left hand. Subsequent treatment records showed
no follow-up treatment, complaints or residual disability.
On VA examination in July 2006, the examiner concluded that
the veteran had a history of left index finger trauma with no
residuals.
Although the veteran's service treatment records show a
fracture of the index finger of the left hand, there is no
evidence that there is a current residual disability from
that fracture. Thus, the Board must conclude that there is
no evidence of a current left index finger disability that is
related to service.
The Board notes that in an April 2008 Appellant's Brief, the
veteran's representative stated that this issue should be
remanded for further development. As noted above, a VA
examiner, who reviewed the veteran's claims folder and
conducted a thorough physical examination, clearly concluded
that the veteran did not have a current left index finger
disability. As there is no medical evidence to the contrary,
a remand for further medical opinion is not warranted.
Residuals of a Right Third Finger Injury
In a July 1992 report of medical history upon service entry,
the examiner noted that the veteran had a history of fracture
of the right third finger with residual decreased range of
motion
On VA examination in March 2002, it was noted that the right
third finger fracture had healed. The examiner reported that
the appearance of the index, middle, ring and little finger
joints was normal.
In light of the foregoing, the Board must deny the veteran's
claim. The medical evidence in this case does not indicate
that the veteran currently has any residuals of a right third
finger injury. Without a current diagnosis, a claim for
entitlement to service connection for this condition cannot
be sustained. The veteran's claim of service connection for
residuals of a right third finger injury is denied.
Shin Splints, Left and Right Leg
The veteran's service treatment records show that in November
1993, bilateral shin splints were diagnosed and treated. X-
rays revealed a normal right and left tibia and fibula. In
December 1994, the veteran complained of pain in the
bilateral shins for the previous 18 months and was diagnosed
as having shin splints. In February 2000, it was noted that
the shin splints issue was unresolved.
On VA examination in March 2002, the examiner determined that
there were no objective findings to support a diagnosis of
bilateral shin splints.
Although the veteran was diagnosed as having shin splints at
different times during service, there is no current medical
evidence of a shin splint disability of either leg.
Accordingly, service connection for shin splints of the right
leg and left leg must be denied.
Left Ankle
The veteran's service treatment records show that in January
1993, he complained of bilateral ankle pain with cracking
noises. Examination of the ankles revealed no deformities
and full range of motion with clicks. Drawer sign was
negative. A diagnosis was not provided.
On VA examination in March 2002, the examiner concluded that
there were no objective findings to support a diagnosis of
any left ankle disability. Because there is no evidence of a
current left ankle disability, service connection is not
warranted.
Because the preponderance of the evidence is against the
claims, the benefit of the doubt doctrine is not for
application. See Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
Right Ankle
The veteran's service treatment records show that in January
1993, he complained of bilateral ankle pain with cracking
noises. Examination of the ankles revealed no deformities
and full range of motion with clicks. Drawer sign was
negative. A diagnosis was not provided.
On VA examination in March 2002 the examiner noted objective
findings of palpatory compression pains and slight tenderness
to palpation. The veteran was diagnosed as having tendonitis
of the right ankle.
Based on a review of the evidence, the Board finds that the
evidence supports a grant of service connection for
tendonitis of the right ankle. The veteran is shown to have
complained of right ankle pain during service. Most
significantly, he was diagnosed as having tendonitis of the
right ankle on VA examination in March 2002 when he was still
in active duty. There is no evidence of record to refute
this finding of tendonitis of the right ankle shown to have
taken place in service.
Accordingly, for the reasons stated above, the Board finds
that entitlement to service connection for tendonitis of the
right ankle is granted. See Gilbert v. Derwinski, 1 Vet.
App. 49, 55 (1990).
ORDER
Service connection for right ear hearing loss is denied.
Service connection for chronic ear infections is denied.
Service connection for pseudofolliculitis barbae is denied.
Service connection for residuals of a right third finger
injury is denied.
Service connection for shin splints of the left leg is
denied.
Service connection for shin splints of the right leg is
denied.
Service connection for a left ankle disability is denied.
Service connection for residuals of a left second finger
fracture is denied.
Service connection for tendonitis of the right ankle is
granted.
REMAND
The Board finds that further development is warranted with
regard to the veteran's claims of service connection for an
eye disability and for initial ratings for left ear hearing
loss, allergic rhinitis, lumbar strain and right and left
knee disabilities.
Eye Disability
A review of the claims folder shows that the veteran failed
to report for a May 2002 VA eye examination. In a February
2004 statement, the veteran reported that he was not able to
make the appointment because the examination was scheduled
after he was separated from service and he was no longer in
the Washington area. He further indicated that he was unable
to reschedule the examination. He contends that he has a
current vision disability due to long submarine deployments
during service. He has also submitted private medical
records showing treatment for vision problems. It does not
appear the RO attempted to reschedule the eye examination.
A definitive medical evidence on the question of whether the
veteran currently has a vision disability and an opinion as
to its etiology is still needed before the claim on the
merits can be properly adjudicated. See Colvin v. Derwinski,
1 Vet. App. 171, 173 (1991) (emphasizing that adjudicators
cannot rely on their own unsubstantiated judgment in
resolving medical questions). The Board finds that it would
be consistent with the notion of due process to give the
veteran another opportunity to report for VA examination.
Left Ear Hearing Loss, Allergic Rhinitis, Lumbar Strain
In a January 2008 statement, the veteran reported that his
service-conditions have worsened since his last VA
examination which was conducted in July 2006. Given the
allegation of worsening disabilities, the veteran must be
afforded new examinations to determine the current severity
of the disabilities. See Caffrey v. Brown, 6 Vet. App. 377,
381 (1994).
Compensable Evaluation Based on Multiple Noncompensable
Disabilities
The Board observes that resolution of the claim under 38
C.F.R. § 3.324 is dependent upon resolution of the issues of
service connection for a vision disability and of initial
increased ratings for hearing loss, allergic rhinitis and
lumbar strain as the issues are inextricably intertwined.
See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).
Accordingly, the case is REMANDED for the following action:
1. Schedule the veteran for an appropriate
VA examination in order to determine
whether he has a vision disability and if
so, the etiology of the disability. The
examiner should review the claims folder
and provide an opinion as to whether it is
at least as likely as not (50 percent
probability or more) that any current
vision disability had its onset in
service, or is otherwise the result of a
disease or injury in service. The
examiner should provide a rationale for
all opinions.
2. Schedule the veteran for appropriate
VA examinations to determine the current
severity of the service-connected left ear
hearing loss, allergic rhinitis and lumbar
spine disabilities. The claims folder and
a copy of this REMAND must be made
available to the examiners. The examiners
should assess all current symptomatology
related to the service-connected left ear
hearing loss, allergic rhinitis and lumbar
spine disabilities, and any other
disorders associated therewith.
3. Following the completion of the
foregoing, and after undertaking any
additional development deemed to be
necessary, the RO should readjudicate the
veteran's claims of entitlement to service
connection for a vision disability and of
increased ratings for left ear hearing
loss, allergic rhinitis and lumbar spine
disabilities and entitlement to a 10
percent evaluation based upon multiple,
noncompensable service-connected
disabilities from June 9, 2002 to May 18,
2003. If any of the claims are denied,
the RO should provide the veteran and his
representative with a supplemental
statement of the case and allow an
appropriate period of time for response.
Thereafter, the claims folder should be
returned to the Board for further
appellate review, if otherwise in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs